The Sudanese Government has applied to the United States for a visa that will enable Sudanese President Omar Al-Bashir to attend the United Nations General Assembly session which starts this week (see BBC report here). The International Criminal Court issued an arrest warrant for Bashir in 2009 and whenever he has travelled abroad since then questions have arisen as to whether the host state ought to arrest him or not. The United States is, of course, not a party to the ICC Statute and therefore does not have an obligation to arrest Bashir. With respect to the US two questions arise. First, may the US deny Bashir entry to the US given that Bashir is seeking to attend the UN General Assembly as a representative of Sudan? Second, if Bashir were to be granted a visa and permitted entry, may the US arrest him whilst there for the GA session? I foreshadowed these very issues in the final section of a an article I wrote on Bashir’s Immunities, in the 2009 volume of the Journal of International Criminal Justice. In that piece, I argued that the despite the immunity that Heads of State are ordinarily entitled to under international law, the referral of the Sudan situation to the ICC implicitly made Article 27 of the ICC Statute (which removes the immunity of state officials) applicable to Sudan. I also argued that “Given that the Statute operates in this case not as a treaty but by virtue of a Security Council resolution it may apply even to non-parties. [Non-parties to the ICC Statute] have no obligations under the Statute to arrest . . . [h]owever, they have the right to deny immunity as a result of the Security Council’s implicit decision to adopt Article 27” (p. 348). However, I went on to state that:

“Despite the arguments above, there is one set of immunities that may not be removed by the Security Council. These are the immunities of representatives to the United Nations” (p. 351).

After discussing the obligation of the US to confer visas to those travelling to to the US to attend meetings of the General Assembly, I concluded that:

“ . . . if Al Bashir were bold enough he would not only have the right to represent his state at UN meetings, he would be immune from arrest were he to do so” (p. 352).

The US Obligation to Grant a Visa

The US, as host State to the United Nations has an obligation to permit representatives of member States (and other persons invited to the UN) entry to the US for the purpose of attending meetings of the principal and subsidiary organs of the United Nations. This obligation is derived from three sources which are of increasing specificity in regulating the visa issue. First of all, Article 105 (2)of the United Nations Charter provides that: “Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connexion with the Organization.” Entry into the territory of a UN member where a UN meeting is to be held is a privilege that is necessary for the exercise of the functions of a representative. A representative cannot attend a UN meeting if they are not permitted entry into the territory of the host state. Secondly, the 1946 General Convention on the Privileges and Immunities of the UN [Art. IV, Section 11(d)] provides that representatives of UN Member States shall be granted exemptions for themselves (and their spouses) from immigration restrictions. This has been interpreted to mean that the refusal to grant a visa to a representative of a member in order to prevent them from attending a meeting would be a violation of General Convention. Thirdly, and most specifically, the 1947 US/UN Headquarters Agreement regulates the matter in more detail in Sections 11 to 13. Section 11 states that:

“The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members . . . or families of such representatives . . .; (5) other persons invited to the headquarters district by the United Nations . . . on official business.”

Section 12 of the Headquarters agreement makes it clear that provisions of Section 11 are applicable “irrespective of the relations existing between the Governments of the persons referred to in that section and the Government of the United States.” Section 13 then provides that “When visas are required for persons referred to in . . . [Section 12], they shall be granted without charge and as promptly as possible.”

None of these provisions make any exception to the principle that the host state is obliged to permit entry to state representatives wishing to attend UN meetings. This is not the first time the issue of Bashir’s participation at a UN meeting have arisen. In Nov. 2009, he was invited by the Danish government to the UN Conference on Climate Change (COP 15) which was held in Copenhagen and which was open to all parties to the UN Framework Convention on Climate Change. At the time, the Danish government took the view that it had an obligation to invite all heads of governments and that it could not refuse to permit Bashir to attend (though hinting it might arrest him were he to actually attend) (see my discussion of this incident).

The UN has consistently taken the view that the UN Charter, the General Convention and the Headquarters provide a nearly absolute obligation for the host state to permit entry to representatives of member states and other persons who are invited to UN meetings on official business. The UN and the member states have rejected the view that the US or other host states can deny entry to representatives of states on grounds relating to disapproval of the state that the person represents or on security grounds. In the 1960s the UN insisted that Pakistan could not deny entry to the representative of Israel to attend a UN meeting. Around the same time the UN Office of Legal Affairs also maintained that African states could not deny entry to representatives of South Africa or Portugal to attend meetings of the Economic Commission for Africa (see the legal opinions and note cited here at p 189). The most famous case of refusal of a visa was the US refusal, in 1998, to grant a visa to Yasser Arafat to attend a meeting of the UN General Assembly (which had to be moved to Geneva). The US alleged that it was not obliged to grant visas in cases where there was a threat to its security. In that episode, the UN Legal Counsel issued a statement (pp. 305-8) to the effect the UN Headquarters agreement did not contain a security reservation that would entitle the US to bar entry to State representatives. This legal opinion was then endorsed by the UN General Assembly in GA Res 43/48 (1988). Thus, there is consensus that the host state does not have the right to deny visas to representatives of member states (or observers), except perhaps in the most compelling case where there is clear evidence that the trip to the UN is to be used in bad faith as a cover for activities contrary to the security of the host state.

None of these cases dealt with situations where there was an international arrest warrant for the person concerned. However, the principle obliging the host state to permit entry to UN meetings has been at issue in cases where individuals have been subjected to travel bans under sanctions regimes. In Nov. 2009 (around the same time that Bashir was invited to the climate change conference) Zimbabwean President Robert Mugabe, who was subject to an EU travel ban, was permitted to attend a World Food Summit in Rome because he was representing his country at the summit organised by the Food and Agriculture Organization of the United Nations. Although this was an EU travel ban it seems to me that it is not in principle different from an ICC Arrest Warrant as both impose international obligations on the relevant States. The US is known to have denied the visas to Iranian officials (including 2 ministers) wishing to attend the UN General Assembly in 2012. However, it is not clear that these individuals would actually have been a representative of their state at the Assembly. Iran applied for about 160 visas but legally speaking states can only have 5 representatives (and 5 alternative representatives) to the GA with as many advisers, experts etc as they wish. It is possible that these people would have been advisers and experts and not representatives, thus falling outside the obligation to grant visas unless they were specifically invited to take part in the UN’s work.

To conclude on this point, the obligation of the host state to permit entry to representatives of other member states is very stringent. It is not clear that there are any exceptions to this obligation. The US might wish to restrict Bashir’s presence to the Headquarters District (and transit to and from that district) but may not refuse entry.

Can the US Arrest Bashir were he to enter the US?

If Bashir were to be granted a visa to attend the GA session, would it be lawful to arrest him while in the US for that purpose? This is precisely what Denmark hinted might happen when it invited Bashir to the UN Climate Change Conference back in 2009. The starting point for answering this question is that Bashir would presumptively be entitled to two types of immunity. First, heads of state are entitled to immunity ratione personae from the criminal jurisdiction of foreign States and this extends to immunity from arrest by foreign States. Second, representatives of members of the UN are immune from arrest when exercising their functions in host states. This immunity may be implied from Art. 105 of the UN Charter and also Sections 11 & 13 from the 1947 US/UN Headquarters Agreement. It is made explicit in the 1946 General Convention on the Privileges and Immunities of the UN [Art. IV, Section 11(a)].

The ICC Pre-Trial Chamber has held, erroneously in my view, that customary international law creates an exception to Head of State immunity when international courts seek a Head of State’s arrest for the commission of international crimes (see here and here). If they are correct, the first type of immunity no longer avails Bashir. I disagree with this reasoning and I would imagine that so does the US as the effect of this reasoning is that US presidents may be arrested by States acting at the behest of international courts that the US has not consented to (see Bill Schabas’ post). I have argued in the JICJ article referred to earlier that in my view the effect of the Security Council referring the Sudan situation to the ICC is to remove Bashir’s immunity under customary international law and that even non-State parties to the ICC Statute are entitled to disregard it. However, non-State parties to the ICC Statute unlike State parties have no obligation to arrest Bashir and this remains the same even for parties to the Genocide Convention (on the significance of the Genocide Convention see the 2009 article).

However, there would still be the immunity provided for representatives of UN member states. This immunity is contained in a treaty to which the US is a party. Presumably, that treaty would prevail over the customary rule that the ICC pre-trial chamber discovered. Moreover, it derives ultimately from the UN charter. Prior to the US’ ratification of the 1946 UN General Convention, which only came in 1970, the UN and other member states regularly asserted the UN’s obligations to grant immunity under Art. 105 of the Charter. As a charter obligation, Art. 103 ensures that it prevails over inconsistent obligations so that even if there were a treaty obligation for the US to arrest (eg under the Genocide Convention), that treaty could not override the Charter obligation. Also, the obligations in Charter ought also to prevail over the Security Council resolutions as the Council’s powers are limited by the Charter. So one could not rely on the SC res as removing immunities that the Charter grants.

In sum, the US is bound allow Bashir to attend the GA session and not to arrest him. Quite rightly too. The obligations in question are rather limited, they are temporary and are of great importance for the ability of the UN to function without interference. Thus, they are ultimately of great importance for the maintenance of a system of peaceful relations among states. Participation by states in the UN is part of the very essence of the UN system. Allowing encroachment of that right would set a damaging precedent for the system. Enforcement of ICC arrest warrants is not ultimately dependent on what happens with respect to UN summits.

7 Responses

for a posting by Julian Ku, “Can the U.S. Legally Deny a Visa to Sudan’s President Bashir? Nope” and the responses (perhaps at http://opiniojuris.org/2013/09/16/can-u-s-legally-deny-visa-sudans-president-bashir-nope )
My response is that the U.S. has an unavoidable obligation to “prevent entry into or transit through” U.S. territory under U.N. S.C. Res. 1591, para. 3(a)(ii), (c) and (d) (2005) (assuming that Bashir is on a list prepared “by the Committee” of persons accused of having committed “violations of international humanitarian law or human rights law or other atrocities”); that this obligation is necessarily one under Article 48 of the U.N. Charter (i.e., to carry out the decision of the Security Council); and that under Article 103 of the Charter, the U.S. obligation trumps any inconsistent obligation under the Head Quarters agreement. Moreover, the U.S. has treaty-based and customary obligations aut dedere aut judicare under or reflected in the Genocide Convention and the 1949 Geneva Conventions.

I think Dapo has met your point by saying that the obligation under the Headquarters Agreement is itself a Charter obligation covered by Article 103, at least by virtue of Article 105(2) of the Charter. Thus, we have a conflict between two obligations claiming precedence/priority under Article 103. Now, whatever this precedence/priority (Article 103 actually says ‘prevail’) means, that is to say whether Article 103 bestows superior rank or only requires member states to honour the Charter obligation in preference to any other, I think Article 103 now fails to help. I should think that, in a conflict of Charter obligations (if any), we are in just the same classical impasse as we would be in a conflict between non-Charter obligations (say, human rights and an extradition treaty in a case like Soering v. UK).

As for the Genocide Convention and the 1949 Geneva Conventions, I think these could only provide the solution if the aut dedere aut judicare obligations were jus cogens. This runs into the difficulty identified by Dapo and Manuel Ventura on 6 September (‘jus cogens by association’).

Tobias: thanks, but Art. 105(2) still has to be interpreted. It might be possible to claim that not all immunities are covered, but only “such” that “are necessary for the independent exercise of their functions in connection with the Organization” and that, in view of the S.C. Res.’s obligations of “all States” and Article 48, coupled with U.N. S.C. Res. 1593, para. 2 (2005)(wherein states are urged to “cooperate fully with and provide any necessary assistance to the Court and the Prosecutor”), it is not necessary that Bashir attend a U.N. session instead of some representative of Sudan before the U.N.
It does not appear that the separate Headquarters Agreement is part of the U.N. Charter and it would be strange for a bilateral agreement to amend the Charter.

Tobias: p.s. I like the jus cogens argument: that genocide is a violation of jus cogens and it is logical and policy-serving to affirm that the mandatory sanction process reflected in the 1948 Genocide Convention (e.g., in Articles I, III, IV, and V of the Convention) is a concomitant part of jus cogens. As jus cogens, the concomitant obligations to engage in sanctions outlined in the Convention prevail over conflicting portions of the U.N. Charter that are not based in jus cogens.

Dapo, thanks so much for this very informative piece. I have been arguing the same thing at Opinio Juris and Justice in Conflict ( http://justiceinconflict.org/2013/09/18/bashir-wants-to-visit-the-big-apple/ ), though I do concede that your post undermines my main argument relating to immunity ratione personae. I have been arguing that Bashir remains entitled to immunity ratione personae in relation to non-State Parties, and as such the US cannot lawfully execute the arrest warrant. Your reference to the Malawi and Chad decisions is helpful, because it got me thinking about them again. I share many of the concerns you, Schabas and Jacobs have voiced in relation to those decisions, and I wonder what will happen if States – non-States and State Parties – continue to not execute this, and potentially other, arrest warrants (in the future) against Heads of State like Bashir. The Pre-Trial Chamber’s argument (incorrect, in my view, already when it was made) that customary international law does not support Head of State immunity in relation to non-State Parties is being disproved each time Bashir visits another country and returns unscathed.

So what should we make of the ICC’s “invitation to illegally arrest Bashir,” as Julian Ku put it ( http://opiniojuris.org/2013/09/18/u-s-accept-iccs-invitation-illegally-arrest-bashir/ )? What does this invitation – once again, like the Malawi and Chad decisions, not supported by any thorough legal analysis – say about the ICC as an institution, and what effect, if any, can it have on the ICC – Africa debate? As I’ve said elsewhere, I suspect this particular visa incident will probably be resolved at the political level, but does the ICC’s cavalier disregard for international law not make for bad publicity?

About the Author(s)

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Yamani Fellow of St Peter's College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict, and also of the Oxford Martin Programme on Human Rights for Future Generations. Dapo is a member of the Editorial Board of the American Journal of International Law, an Emeritus Editor of the European Journal of International Law; and a member of the advisory board of several other journals. He is a Counsellor of the American Society of International Law, a Trustee of the British Institute of International and Comparative Law and a member of the Africa Group for Justice and Accountability. Read Full